IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
AFRICAN AUTOMOBILE LIMITED AND MOHAMMED HIJAZI - (Plaintiffs/Appellants)
PAA KOFI MENDS AND YAW MENDS - (Defendants/ Respondents)
DATE: 22 ND FEBRUARY, 2018
SUIT NO: H1/33/2017
JUDGES: K.A. ACQUAYE J.A (PRESIDING), SENYO DZAMEFE J.A, M. MABEL AGYEMANG (MRS) J.A
KWESI COLOMAN FOR THE PLAINTIFFS/APPELLANTS
TERRY MORKEH FOR THE DEFENDANTS/ RESPONDENTS
The plaintiffs issued a writ of summons claiming: -
a) Specific performance of the contract made between plaintiffs and 1st defendant on 9th January 1997 for the lease of all that piece or parcel of land situate and lying at Bubuashie, Accra registered at the Deeds Registry as No. 1698/1996 and stamped as Ac 2662/66.
b) Injunction to restrain defendants from interfering with the disputed property or collecting any rents therefrom
c) An order directing the 1st defendant to execute the lease agreement in respect of the land described in relief (a) above
d) An order for demolition of all unauthorized structures, houses and buildings on the property.
The plaintiffs’ case is that in January 1997 they entered into an oral agreement with the 1st defendant to lease the undeveloped parcel of land in front of the 1st defendant’s house for 50 years with the option to renew for another 50 years for ⊄72,000,000.00 [Gh⊄7,200.00]. According to the 2nd plaintiff he made part payment of ⊄5,500.00 [Gh⊄5.5] to the 1st defendant. When he submitted a draft leasehold agreement to the 1st defendant he made some corrections to it and returned it to him. The 2nd plaintiff testified that when he sent the final agreement to the 1st defendant to sign, he refused even though he had prepared a banker’s draft payable to the 1st defendant for ⊄50,000,000.00 [Gh⊄5,000.00] to be collected by the 1st defendant upon signature of the leasehold agreement as had already been agreed between them.
According to the 2nd plaintiff he intended putting up a five story building on the land for rental as offices and shops at the cost of $4 million which would have earned him over $500,000.00 in 6 months.
The 1st defendant testified that at all material times there was litigation over the land with another person at the Accra Circuit Court so all discussions with the 1st plaintiff were held contingent upon the successful completion of that suit which had not been completed at the time the suit was heard. The 1st defendant also testified that he refused to sign the completed agreement and resiled from the lease agreement because even though the agreement was between the two of them in their personal capacities, the 2nd plaintiff inserted the name of his company, Africa Automobile Limited as the leassee when he typed the final agreement. The defendants contended therefore that the plaintiffs were not entitled to their claims.
In her judgment the trial judge stated that the central issue for determination is whether on the available evidence there was a conclusive agreement/contract between the plaintiffs and defendants to enable the court decree specific performance in favour of the plaintiffs. The trial judge held that specific performance being an equitable remedy, a party who seeks it must come with clean hands not tainted with fraud. The trial judge found that by the receipts exhibits C and C1, the 2nd plaintiff entered into a contract with the 1st defendant to lease the parcel of land but the plaintiffs are in this suit asking the court to specifically enforce the contract between the two plaintiffs and the 1st defendant. The trial judge also found that the consideration of ⊄72,000,000 (Gh⊄7,200.00] was to be paid in two instalments of ⊄50,000,000 [Gh⊄5,000.00] cheque and ⊄22,000,000.00 [Gh⊄2,200.00] cash but none had been received by the 1st defendant so no consideration had passed to constitute part performance because PW1 confirmed the 1st defendant’s evidence that the ⊄5,000.00 received by the 1st defendant was to drive away trespassers on the land. The trial judge therefore held that the plaintiffs have not proved part performance of the contract and that they are not entitled to the reliefs they claimed and accordingly dismissed their claims. She however ordered the defendants to refund the sum of Gh⊄550.00 received from the plaintiffs with interest at the commercial bank lending rate.
Dissatisfied with the judgment the plaintiffs filed a notice of appeal with the following grounds:-
1. The trial judge erred in law and in fact in holding that there was no contract between the plaintiffs/appellants and the defendants/respondents
2. The trial judge erred in holding that there was no part performance on the part of the plaintiffs/appellants
3. The judgment is against the weight of evidence
4. Additional grounds of appeal shall be filed on receipt of the record of appeal
Arguing the grounds of appeal, Counsel for the plaintiffs/appellants submitted that from the evidence on record, the 1st defendant/respondent does not dispute an agreement between him and the 2nd plaintiff/appellant. The bone of contention, according to Counsel for the plaintiffs/appellants is whether or not there was any agreement between the 1st plaintiff/appellant and the 1st defendant/respondent based on which specific performance ought to be enforced by the trial judge. According to Counsel for the plaintiffs/appellants the 2nd plaintiff/appellant’s evidence that he has no personal interest in the transaction or property in dispute but that he in his capacity as the chairman of the 1st plaintiff/appellant company negotiated with the 1st defendant on behalf of the 1st plaintiff/appellant. Counsel said this was confirmed by PW1’s evidence and the draft lease agreement Exhibit C1 which was corrected by the 1st defendant/respondent’s lawyer and sent back to the plaintiffs/appellants.
Counsel for the plaintiffs/appellants submitted that the receipts Exhibits C and C1 both indicated that they were payments for a 50 year lease of the land in dispute so the trial judge erred in holding that there was no part payment for the land to be leased as this was also admitted by the 1st defendant/respondent under cross-examination. Counsel therefore submitted that the trial judge erred in holding that there was no contract between the parties which rendered the judgment being against the weight of the evidence led at the trial. Counsel for the plaintiffs/appellants submitted that the defendant/respondent having admitted that there was a transaction between him and the plaintiffs/appellants and that he received Gh⊄500.00 out of the transaction, it was wrong on the part of the trial judge not to decree specific performance on behalf of the plaintiffs/appellants. Counsel for the plaintiffs/appellants thus urged us to re-evaluate the entire record and set aside the judgment of the trial court as being erroneous and against the weight of evidence and decree specific performance on behalf of the appellants.
Answering the arguments made on behalf of the plaintiffs/appellants, Counsel for defendants/respondents submitted that the 1st defendant/respondent refused to execute the lease agreement because the 2nd plaintiff unilaterally introduced the 1st plaintiff/appellant into the agreement as the leassee. Counsel submitted that from the evidence there was some sort of an agreement between the 1st defendant and the 2nd plaintiff/appellant and that 1st plaintiff/appellant was not a party to that agreement at all. Counsel referred to the receipts Exhibits C and C1 and the draft leases Exhibits A and B all of which were prepared by the 2nd plaintiff himself and submitted that the two agreements were different. Counsel for the defendants/respondents referred to the end of the evidence in chief of the 1st defendant/respondent at page 155 of the record of proceedings that “I was not dealing with the company. I was dealing with Mohammed Hijazi. It was when I realized that the company was coming that I did what happened”.
Counsel submitted that as the 1st defendant/respondent knew at all times that he was dealing with only the 1st plaintiff/appellant the trial judge was right in dismissing the relief for specific performance sought by the plaintiffs/appellants. Counsel for the defendants/respondents also referred to PW1’s evidence that the purchase price of Gh⊄7,200.00 was payable by a bankers draft for Gh⊄5,000.00 and cash of Gh⊄2,200.00 and submitted that as the defendants/respondents never received any of such monies, there was no part performance of the lease agreement hence the plaintiffs/appellants are not entitled to an order for specific performance. Counsel therefore urged us to dismiss the appeal and uphold the judgment of the trial court.
In this appeal even though the plaintiffs/appellants stated in their 4th and last ground of appeal that additional grounds of appeal shall be filed on receipt of the record of appeal, no additional grounds of appeal has as yet been filed so that ground of appeal is deemed to have been abandoned. The first and second grounds of appeal can also be subsumed and argued under the third ground of appeal that the judgment is against the weight of the evidence led at the trial. The position of the law has long been established that where an appeal is based on the ground of the judgement being against the weight of the evidence, the appellate court is being called upon to review the whole of the evidence, both oral and documentary, to ascertain whether the judgment of the court below can be supported having regard to the whole evidence led at the trial. See the cases of Oppong Kofi and other vrs Attibrukus III  1 SCGLR 176; Djin vrs Musah Baako [2007-2008] SCGLR 686
As this case is founded on a contract for the sale of land, the basic ingredients of a contract must be proved in the evaluation of the evidence which are identification of the parties to the agreement, offer and acceptance and the existence of valuable consideration. Secondly as the claim is for specific performance of an agreement for the sale of land we must examine whether the preconditions for the grant of specific performance exists which are the existence of the contract in writing and part performance of the contract referable only to the contract for the sale of the land. See Fofie vrs Zanyo  2 GLR 475.
We have evaluated both the oral and documentary evidence led in this case and we are of the view that save the question of who are the parties to this contract, almost all the issues involved in resolving this case are not in dispute and have been proved. For example, it is not in dispute that the subject matter of this contract is the open space in front of the 1st defendant’s house which devolved on him in the will of James Biney Mends which vesting assent was tendered as Exhibit E. It is also not in doubt that the agreed consideration for the property was ⊄72,000,000.00 Gh⊄7,2000 payable by bank draft of ⊄50,000,000.00 Gh⊄5,000.00] and cash payment of ⊄22,000,000.00 [Gh⊄2,200.00]. Furthermore, it is not
In dispute that the 1st defendant respondent received in pursuance of that agreement the sum of ⊄5,500,000.00 [Gh⊄550.00] of which ⊄5,000,000.00 (Gh⊄500) was on account of fifty years lease in respect of that parcel of land adjacent to Kodel house at Kokompe junction as per Exhibit C and, Exhibit C1 which both parties agreed was to drive out trespassers on the land. Thus from the evidence on record the identity of the land is known, the purchase price has been agreed upon and part payment of the consideration towards the performance of the contract has been made.
The only issue on which the parties do not agree is who are the parties to this agreement. Even here both parties agree that the 1st defendant/respondent was one party to the agreement. The main disagreement is whether the leasee of the property is the 1st plaintiff, the 2nd plaintiff or both of them. To determine the answer to this question we need to interrogate the documents which relate to this transaction. The first document is the receipt exhibit C issued on 9th January 1997 to evidence the payment of ⊄500,000.00. Exhibit C was issued to evidence the payment by Mr. M.S. Hijazi. The second receipt Exhibit C1 issued on 12th May 1997 was also to evidence payment of ⊄ 5,000,000 by Mr M.S. Hijazi. The person making these payments was Mr. M.S. Hijazi so he is the person that can be considered as leasing the land. Even though Mr. M.S. Hijazi who is the 2nd plaintiff testified that as the Managing Director of the 1st plaintiff he had no personal interest in the property but was acting for the 1st plaintiff, in Exhibit A which is the draft agreement which was corrected by the 1st defendant, the leasee in that document was named as Mohamed Shale Hijazi the 2nd plaintiff and not African Automobile Limited, the 1st plaintiff.
The 1st defendant/respondent was therefore perfectly right in refusing to sign the contract in which Africa Automobile Limited has been substituted as the leasee. The trial judge was therefore right in refusing to order specific performance of the agreement between Paa Kojo Mends and African Automobile Limited as the latter was not a party to the lease agreement.
It is however important to note that African Automobile Limited was not the only party to the action.
M.A. Hijazi was joined to the action as a 2nd plaintiff. From the analysis above he was the leasee of the leasehold agreement for which specific performance was being sought. The trial judge however limited her judgment to between the 1st plaintiff and the 1st defendant without considering the case of the 2nd plaintiff against the 1st defendants even though the plaintiffs claim was jointly and severally against the defendant. From the evidence on record while the 1st defendant was entitled not to sign any agreement between the 1st plaintiff and himself, he was not entitled to resile from the agreement between the 2nd plaintiff and himself for which there had been part performance per Exhibits C and C1. Unfortunately, the 2nd plaintiff’s pleadings in the amended statement of claim calling for specific performance between himself and the 1st defendant was contradicted by his evidence that he acted for the 1st plaintiff so the contract was between the 1st plaintiff and the 1st defendant, which evidence has been rejected by this court. As a result, we cannot decree specific performance between the 2nd plaintiff and the 1st defendant of the leasehold agreement because the parties are not at idem as to who are the parties to this agreement in view of the final agreement Exhibit A1. The 2nd plaintiff/appellant would have succeeded in this appeal if he had not led evidence that he was acting for the 1st plaintiff/appellant or if the draft agreement he presented to the 1st defendant/respondent for correction had been in the name of the 1st plaintiff/appellant instead of the 2nd plaintiff/appellant.
From the above analysis, there is no agreement which can be specifically enforced against the 1st defendant/respondent. The appeal therefore fails and it is accordingly dismissed. The judgment of the trial court dated 3rd May 2013 is upheld.
We award costs of Gh⊄5,000.00 against the plaintiffs/appellants.